HKSAR v. MAN HO CHUEN

[English Translation –英譯本]
HCMA 462/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 462 OF 2015

(ON APPEAL FROM ESCC NO. 436 OF 2015)

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REASONS FOR JUDGMENT

1.  The appellant was charged with one count of “common assault”, contrary to Section 40 of the Offences against the Person Ordinance, Cap. 212 of the Laws of Hong Kong. The appellant at first pleaded guilty. However, the facts he described to the probation officer indicated that in fact he denied the charge. Thus the court allowed him to reverse his plea from guilty to not guilty. The case was heard by magistrate Lee Siu Ho in the Eastern Magistracy. The appellant was convicted after trial and was sentenced to 7 days’ imprisonment. The appellant appealed against both conviction and sentence.

2.  At the conclusion of the hearing, I allowed the appeal, quashed the conviction and set aside the sentence. I also ordered that costs of this appeal and the trial (totaling $1,278) be awarded to the appellant. I now set out the reasons for my judgment.

Particulars of the offence

3.  The particulars of offence are as follows:

“Man Ho Chuen, you are charged that on the 13th day of October 2014, outside Bank of China Tower at Queensway near Garden Road, Central, in Hong Kong, you assaulted Chan Ho Wun.”

The prosecution’s case

4.  The prosecution’s case was that on the day in question, people supporting and opposing the “occupy Central” campaign had confrontations and demonstrations at Queensway. The first prosecution witness (PW1) Chan Ho Wun was a 19 years’ old young man. He supported the “occupy Central” campaign while the appellant was a 70 years’ old elderly man who opposed the “occupy Central” campaign.

5.  According to Chan’s evidence, he was at Queensway dissuading people who supported the “occupy Central” campaign from rushing towards the camp of anti-occupy Central people. When he was walking back to the pavement of the Bank of China Tower near Garden Road, the appellant, without any warning, suddenly reached out his hand and took off the yellow ribbon which was pinned on his chest. Chan asked the appellant why he had done so and the appellant replied, “You belong to the yellow ribbon. You are not in a position to talk to me.” Chan answered, “How can (you)act like this?” The appellant then reached out his right hand and split his right index finger and middle finger into a V shape and assaulted Chan by forking his neck.

6.  Chan stated that the appellant had walked forward two or three steps while forking his neck and he himself had stepped back two or three steps at the same time. He felt painful and raised both of his hands. Someone next to the appellant told him to stop and the appellant stopped. Chan was taken away from the scene and Chan said the incident had lasted for 5 to 10 minutes.

7.  Chan stated that after the incident, he went to the nearby first aid post of the “Occupy Central” campaign to have ointment applied to him. His pain was only alleviated the following day.

8.  Chan did not call the police at once. He only decided to call the police that night after learning that a photo (Exhibit P1) depicting the appellant’s hand reaching out and touching his neck was posted online on the “Facebook”.

9.  The second prosecution witness (PW2), another MrChan, testified that on 15 October 2014, he saw people gathering outside the exit of Admiralty MTR and he took a look out of curiosity. He followed the people who were marching towards the Legislative Council.

10.  During the period, a MrKwok whom he knew pointed the appellant out to him and alleged that the appellant had assaulted someone. MrKwok also sent a photo to him by whatsapp. He said the photo had shown that the person whom he later requested the police to arrest (i.e. the appellant) seemed to be attacking a young man.

11.  The prosecution produced to court the photo which the police had downloaded from the Facebook and was referred to by Chan in his evidence. The appellant alleged that the photo had been altered. The magistrate eventually found that the photo was admissible.

The defence case

12.  The appellant who was not represented said in his testimony that he had come across Chan outside Bank of China Tower, Queensway near the open space underneath the flyover of Cotton Tree Drive. Out of curiosity, he struck up a conversation with Chan. During the period, the appellant noticed that Chan was emotional and swayed his body and suddenly lifted his right leg to step forward. The appellant felt that Chan’s body propelled towards him and he felt threatened, so in order to protect himself in the short run, out of natural response, he straightened his right arm and clasped all his five fingers intending to use this gesture to resist the harm that Chan might inflict on him.

13.  The appellant alleged that Chan’s movement was too quick and the fingers on his right hand were already very close to Chan’s neck in an instant. He did not have enough time to “rectify” his gesture and his right hand already touched Chan’s neck lightly. The appellant was able to “rectify” his gesture later by bending his right wrist upward 90 degree. He said he was “a hair’s breadth” away from Chan. The appellant heard demonstrators shouting frantically at the back and he turned his head to take a look. When he turned back, he already lost sight of Chan.

The Magistrate’s findings

14.  The magistrate said he “disregarded Exhibit P1 the photo for the time being” and he was satisfied that Chan was an honest and reliable witness and was satisfied that his “core evidence was true”. The magistrate stated that “if necessary”, he further found that photo Exhibit P1 truly reflected the situation at the scene of the case and supported and corroborated Chan’s evidence.  He gave “full weight” to the photo.

15.  Regarding the appellant’s version, the magistrate did not accept the appellant’s explanation that he had felt threatened by Chan and also did not accept that the appellant had to do any acts which he claimed to be in self defence.

16.  The magistrate found the appellant guilty of the charge.

Grounds of Appeal (against conviction)

17.  Mr Eric Cheung has put forward five grounds of appeal on behalf of the appellant.

(1) The magistrate erroneously found P1 admissible when there was insufficient evidence to establish the prima facie authenticity of the photo and to exclude the possibility that the photo might have been altered. He also erroneously found that the photo truly reflected the situation at the scene of the case and gave full weight to it, thereby causing the conviction to be unsatisfactory.

(2) The appellant was unrepresented. When the appellant was cross-examining the main prosecution witness (PW1), the magistrate did not give appropriate assistance to him so as to test and clarify the prosecution’s case, so that the trial was rendered unfair because the appellant was not able to defend himself in accordance with the principle of fairness and impartiality.

(3) The magistrate erred in having admitted the evidence of PW2 which was not relevant and without probative value but might be prejudicial.

(4) Since the appellant was unrepresented, the magistrate erred in allowing the prosecution to make a closing submission on factual disputes, which was a serious irregularity and rendered the trial unfair.

(5) There was a lurking doubt in this case, which rendered the conviction unsafe or unsatisfactory.

Ground of Appeal (1)

18.  Mr Cheung submits that the magistrate was aware that the person who had posted the photo onto the “Facebook” did not testify in court and there was no evidence on when, where or at what angle was the photo taken before it was uploaded to the “Facebook”. The appellant all along queried whether photo P1 had been fabricated or doctored. However, the magistrate misconstrued the case of HKSAR v Lee Chi Fai [2003] 3 HKLRD 751 which was cited in HKSAR v Yeung Ka Ho (CACC 207/2011) and held that after considering the surrounding environment, he could admit P1 into evidence. He failed to consider that in both of the cases, prima facie authenticity of the exhibits were only established after expert witnesses from the prosecution testified in court stating that forensic examination revealed that neither the audio nor the video recording had been altered together with other circumstantial evidence.

19.  However, the item involved in this case was only a photo which was taken at an unknown place and time and was not a continuous clip of audio or video recording. With modern technology, doctoring of digital photos is very easy. However, the prosecution did not call any expert witness to analyse photo P1, so the photo concerned should not have been admitted by the court into evidence.

20.  Though the magistrate stated that he disregarded photo P1 for the time being and he also believed Chan’s evidence, when he erroneously found that the photo reflected the situation at the scene of the case and gave full weight to it, as a photo image “saved a thousand words”, the effect of the photo on him when he was weighing the creditability of Chan and the appellant’s evidence simply could not be excluded, thereby causing the conviction to be unsafe and unsatisfactory.

Ground of Appeal (2)

21.  In respect of the ground of appeal (2), Mr Cheung mainly submits that though the magistrate had repeatedly explained the rules of cross-examination to the appellant and assisted the appellant on other matters, the magistrate had not endeavored to assist the appellant and failed to clarify with Chan on the “location of the offence” in his evidence, which was seriously disputed by the appellant. Instead the magistrate held the view that the location of the offence was irrelevant, which is unfair to the appellant.

Ground of Appeal (3)

22.  Mr Cheung points out that PW2 was not at the scene at the material time. He identified the appellant to be the person who had assaulted the other person relying on the photo and he asked the police officers in the vicinity to arrest the appellant. The evidence of this witness has no relevance and probative value in law, yet as a matter of perception, it is detrimental to the appellant and may be prejudicial. His evidence is not admissible. The magistrate not only failed to query why the prosecution had called this witness, he also reminded the appellant that he needed to cross-examine the witness after examination-in-chief. The magistrate also did not deal with the evidence of this witness in his Statement of Findings, rendering it impossible to learn whether such evidence had influenced the magistrate’s judgment of the facts of the case or not.

Ground of Appeal (4)

23.  Though Mr Cheung relies on the ruling of the vice-president of the Court of Appeal in the case of HKSAR v Zuo Ya Ying (CACC 432/2014) that the legal principle established in the case of Tso Kin Shing (i.e. when a defendant who was not legally represented gave evidence in his own defence but did not call any witness, the prosecution did not have the right to make a closing submission ) was applicable to (District Court) cases dealt with by a judge sitting alone and its assistance to the judge was limited to closing submissions in respect of facts but not legal issues,  Mr Cheung concedes that the Court of Appeal decision in the case of The Queen v Au-yeung Tat-shing & Another (CACC 19/1985) (by a 2:1 majority) which is binding on magistrates’ courts held that this principle did not apply to trials in magistrates’ courts. Thus the appellant did not make any submission on this ground of appeal and intended to just reserve this ground of appeal in the event that this case had to be further dealt with by the Hong Kong Court of Final Appeal.

Ground of Appeal (5)

24.  In respect of this ground of appeal, Mr Cheung submits that the appellant had been law-abiding and he had no record of violence or conviction. This case is a typical one against one case. The magistrate erred in his way of dealing with the hearing and his consideration of the evidence. The case of assault alleged by Chan was inherently improbable. There are doubts in the case.

My consideration

25.  A magistracy appeal is a “rehearing” on the evidence before the trial magistrate supplemented by such further evidence as the appellate court may admit: see Chou Shih Bin v HKSAR[1] . In my view, regarding the facts of the case, it must be acknowledged that a magistrate has the advantage of hearing and watching witnesses giving evidence in court, and the appellate court cannot determine the credibility and reliability of witnesses by relying on the written transcripts: see Raymond Chen v HKSAR[2]. The credibility and reliability of any particular witness is solely within the assessment of the magistrate. Where the findings of facts by the magistrate are unreasonable or illogical, or inherently improbable; or the magistrate has misquoted, or omitted, or failed to consider and analyse any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.

26.  I think all the grounds of appeal (except Ground of Appeal (4)) can be dealt with together.

27.  Chan’s evidence showed that he was just dissuading the group (the yellow ribbon) (of which he was a member) that supported “occupy Central” from rushing towards the group (the blue ribbon) that opposed occupy Central. He did not do anything to repel people from the blue ribbon group. Yet the appellant took off the yellow ribbon on his chest without any reason and later even assaulted his neck, causing him to step back. He felt painful after the assault and later went to the first aid post to have ointment applied to him. The pain persisted to the following day (i.e. two days). At that time, he already knew that the appellant was a “Victoria Park old man” who had actively participated in the “City Forum” show for many years. He had seen the appellant on the media prior to this case and formed a poor impression of the appellant (line M, page 125 to line B, page 126 of the appeal bundle).  Under such circumstances, why didn’t he call the police at once and instead only called the police at night after having seen the photo on the “Facebook”?

28.  As to the question of who took the photo at what time and what place, no photographer came to testify in court.  I understand that the prosecution can still produce the photo even when they cannot or fail to call the photographer, yet the court has to consider whether the photo is relevant to the case and decide whether the photo is authentic or not based on all the circumstantial evidence. However, in this case, there is indeed no expert evidence to say that the photo has not been altered or it is not forged. Furthermore, the item involved in this case is just a photo and not a video recording showing a series of actions and movements.  It will be a very simple act for someone to forge or alter the photo and then upload it on the “Facebook”.  Even if the photo has not been forged or altered, the image depicted by the photo may also be inaccurate due to the angle taken. The magistrate should not have readily admitted the photo into evidence.

29.  I have looked at the photo closely. Due to the low pixel of the photo, I cannot be sure whether the appellant’s fingers formed a “V” shape or whether his fingers were clasped from the photo. Objectively speaking, if the appellant divided his fingers to form a “V” shape to fork Chan, such a weird gesture would support that the appellant was assaulting Chan. However, if the appellant’s fingers were clasped and lying flat, then this gesture would support that the appellant wanted to prevent Chan from continuing to move forward.

30.  What is important is I fail to see that the magistrate has given thoughts to the following issue: Since Chan was assaulted for no reason at all, and he felt so painful that he had to receive treatment at the scene at once, and the pain continued to the following day, he also knew who the appellant was, then why did he have to wait till the photo surfaced before he called the police? Was the photo forged or had it been altered? At the scene of the case, not only people who supported and opposed “occupy Central” were present confronting one another, the police were also at the scene maintaining order. However, apart from Chan, no other person provided independent evidence to support Chan’s version of events.

31.  According to Chan, he basically just said the following two sentences to the appellant: He asked the appellant why his yellow ribbon was taken off for no reason at all. The appellant replied, “You belong to the yellow ribbon. You are not in a position to talk to me.” Chan responded by saying, “How can (you) act like this?” Then his neck was immediately forked by the appellant and he stepped backward two or three steps before he was taken away by other people. Under such circumstances, the entire incident should have lasted for one or two minutes only and should not have been the five to ten minutes as asserted by him.

32.  On the other hand, according to the version of the appellant, the appellant had struck up a conversation with Chan and the acts of “self-protection” alleged by the appellant only took place subsequently. If Chan’s evidence that the incident had lasted for five to ten minutes was true, then would it be the case that something else occurred between Chan and the appellant which was not revealed by Chan fully? It seems that the magistrate has failed to consider whether Chan had in fact revealed the whole truth or not.

33.  Furthermore, the magistrate when refusing to accept the appellant’s evidence pointed out that the appellant did not mention in his evidence in chief that he had said something to pacify Chan’s feelings. However, he mentioned for the first time under cross-examination that he had said the following words to Chan: “Don’t be nervous, rest assured, it will be fine”. The magistrate was of the view that the appellant had fabricated the above evidence (paragraph 32 of the Statement of Findings). Chan likewise only mentioned for the first time under cross-examination that he had gone to the first aid post to have ointment applied to him, which he failed to mention in his evidence in chief. However, the magistrate did not query Chan’s evidence in the same way he queried the appellant’s evidence. It seems that the Magistrate dealt with the evidence of these two persons differently.

34.  As regards PW2, he was not an eye witness. His evidence mainly concerned the course of how the appellant was arrested. In fact, though the appellant was not legally represented, the prosecution needed not have called this witness. The prosecution only needed to call the police officer who had arrested the appellant to testify and say that he arrested the defendant after receiving some complaints. The appellant had no legal representation and did not know that when this witness related the words of his friend surnamed Kwok and his assertion that the appellant was the assailant after viewing the photo, those were all hearsay evidence. Thus he did not object to it. When the magistrate heard the relevant evidence, he should have asked the prosecution to state the purpose of adducing such evidence so that he could ensure that no hearsay evidence was admitted into evidence by mistake.

35.  Though the magistrate did not clarify with the prosecution and also asked the appellant what questions he wanted to ask this witness after his evidence in chief, the magistrate did not refer to PW2 in his Statement of Findings. I am of the view that as a professional magistrate, he did not erroneously rely on PW2’s evidence.

36.  Counsel for the appellant contends that the magistrate has not assisted the appellant to ascertain the location of the offence. After going through the transcript, I find no merit in this ground of appeal. The magistrate was very patient and went to great lengths to assist the appellant. Yet it seems that the appellant was not able to put his questions to Chan in an organized manner, that’s why Chan failed to understand the questions most of the time. It is true that both parties did dispute the location of the offence. However, after a lengthy cross-examination, eventually it can be seen that in fact the location of the offence referred to by Chan was really closer to Queensway instead of Garden Road, which was not far away from the place referred to by the appellant.

37.  I already raise my query on why Chan only called the police after seeing the photo uploaded on the “Facebook” but not immediately afterwards, and whether the photo was authentic or not. Chan did not mention he had gone to the first aid post either in his written statement or his evidence in chief. In this case, the evidence given by Chan and the appellant can be said to be “one against one”. If what the appellant said was true or might be true, then the prosecution failed to prove its case. Even if the magistrate did not accept the appellant’s evidence, he had to be sure that the prosecution had proven its case.  I already pointed out the issues which I queried and which were not given due consideration by the magistrate. I could not decide whether Chan’s evidence was credible and reliable or not when this appeal was dealt with by way of rehearing.

38.  In the light of the above reasons, I order that the appellant’s appeal against conviction be allowed, the conviction quashed and the sentence set aside. I do not need to deal with the appeal against sentence.

Costs

39.  Counsel for the appellant applied for the costs of the appeal and the trial. The respondent opposed the granting of costs of the trial asserting that the appellant had “brought suspicion upon himself”.

40.  Though the appellant put forward self defence as his defence, as pointed out by me earlier, if the appellant’s evidence was true or might be true, then the prosecution could not prove that he had committed the offence of common assault. Even if the court did not accept the appellant’s evidence, the court had to consider the evidence of the prosecution witnesses. If there were doubts in the prosecution’s evidence, the prosecution could not prove its case. I do not agree that the appellant has “brought suspicion upon himself”. Accordingly I order that the costs of this appeal and the trial be granted to the appellant.